The Battle for the Constitution

Intrinsic Abilities

“Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

When I first read of Judge Sotomayor’s statements quoted above, I laughed at their apparent taken-out-of-context usage. Clearly there must be some explanation between the two statements or some unreported circumstances which explained the naked racism of this respected jurist. I found and read the original text of the speech to have a better understanding of the Supreme Court nominee. Here’s what she said:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Well, there is a statement or two between the references, and the speech was given at a symposium on Latinos in the judiciary. However, neither of these two factors mitigate the absurdity of her statement.

What does living the life of a Latina woman have to do with an improved ability to interpret the constitutionality of the law?

Using this logic, I, as a sixty-four and one-half inch tall person of Franco-American descent would hopefully make a better dentist than those of you who have not had the benefit of the richness of my genetic and ethnic experiences – especially you Brits. Since others before me have stated that there is no such thing as universally good teeth, I can certainly fix your teeth, not by adhering to any principles of dentistry, but in accordance with my innate talents.

Interpreting the Constitution is difficult enough, but it is particularly so if you don’t have the benefit of genetic and ethnic gifts according to the Supreme Court nominee.

Interpreting the Constitution

Thanks to a referral by C. August at Titanic Deck Chairs, I read an excellent essay by Tara Smith regarding some competing judicial theories entitled, “Why Originalism Won’t Die – Common Mistakes in Competing Theories of Judicial Interpretation.” In this piece in the Duke Journal of Constitutional Law & Public Policy, Smith discusses several theories used to interpret the Constitution. It’s a fascinating look at how the veneer of objectivity gives weight to the theory of Originalism (as used primarily by Justice Scalia) especially as compared to other theories. The essay shows that such a strict interpretation of the specific words used by the original lawmakers ignores the wider conceptual nature of the words’ meanings. It’s a terrific introduction into the pitfalls of some of the competing judicial theories of interpretation.

Smith explains:

Having claimed that the objective judge needs to be philosophical as well as conceptual, I should stress that the domain for exercise of philosophical judgment is limited. Judges are not simply philosophers, nor are they primarily philosophers. They are interpreters -- of laws that others have made. Judges are not to unilaterally generate philosophical questions and apply their answers through their rulings. Rather, when cases are brought before them, they are to read those cases according to the philosophical framework that our Constitution provides. Their role is not to "perfect" the Constitution.

Even if you begin to understand the various theories and the criticisms against their lack of objectivity, it won’t matter much if the prevailing wisdom continues to view the Constitution as stripped of all content regarding individual liberty.

The Empty Constitution

Finally, I highly recommend “Justice Holmes and the Empty Constitution” by Thomas A. Bowden, in the most recent issue of The Objective Standard, vol.4, No. 2. This historical look at the reasoning behind, and the devastating implications of this brief dissent of Justice Oliver Wendell Holmes, Jr. in the “Lochner v. New York” Supreme Court decision is a must read for anyone who wishes to understand not the power of the Supreme Court, but rather the failings of the false dichotomy of judicial activism and judicial restraint. From this dissenting opinion:

I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

On its face, part of this statement does not seem particularly harmful; in fact, one should be able to point to fundamental principles in the law. However, as part of the Lochner dissent, Holmes’ reliance on dominant opinion has been used to justify the intellectual brow-beating of those who hold that the Constitution itself is full of principled content regarding the individual’s relationship to the state. This idea of an “empty constitution” has been the popular among jurists and the judicial confirmatory body of the Senate in the last 50 years or so. As such, this one dissenting opinion has been the tool by which the objective rule of law has been insidiously transmogrified by the bankruptcy of public opinion rather than interpreted and upheld by those United States officials sworn to do so.



I’m still trying to understand the history, power, and influence of the Supreme Court of the United States as it impacts all of our lives; but what I do understand is that the law of the land is currently besieged on all sides by the dominance of subjectivity.